The Anti-Partisan Principle

To return to my posts from last week, I’m working through the idea that there is an unwritten constitutional principle (or, if you do not like that phrase, a powerful norm) holding that changes to the structure of government cannot be undertaken when they would lead to a substantial and foreseeable partisan advantage. This is a logical extension of Federalist #10. Madison argued there that an object of constitutional design was to prevent any one faction from gaining too much power. Sometimes, though, the constitutional design is inadequate. At that point, though, public opinion, elite opinion, and the courts step in to preserve the balance of power.

The first set of precedents expressing this anti-partisan tenet with respect to political parties came in the aftermath of Jefferson’s election in 1800, which marked the first transfer of power from one party to another. Consider one of the famous incidents from that era–the “Midnight Judges” nominated by President John Adams. After the election, the Federalist Congress enacted (and Adams signed) the Judiciary Act of 1801. This Act, among other things, created many new federal judgeships. Adams nominated and the Senate confirmed men for these seats on the eve of Jefferson’s Inaugural.

Today we think that this action was deeply wrong. Why? The Judiciary Act of 1801 was not unconstitutional. Nor was there anything illegal about the subsequent appointments. The “Midnight Judges” are an anti-precedent because they were done by a lame-duck President and Congress for a significant and definite partisan advantage. Why is that important? Because it helps explain why the repeal of the Judiciary Act was constitutional. When scholars look at Stuart v. Laird, the 1803 case that upheld the repeal, it is often seen as an example of the Supreme Court folding in the face of political pressure. Viewed in light of this anti-partisan principle, the Court’s decision was sound. When in doubt, brazen partisan power grabs cannot stand.

Consider another example from this era–the impeachment of Justice Samuel Chase in 1805. The failure of the Senate to convict Chase (a Federalist) is now seen as a precedent establishing that Justices may not impeached for expressing views that are unpopular. Another way of viewing that acquittal, though, is that the impeachment and removal of Justices of one party by the other party is fundamentally wrong because it would allow a party to take advantage of a temporary supermajority in Congress to purge the Court and replace the Justices en masse.

Tomorrow I will take a look at additional examples, as I build toward articulating something about Chief Justice Roberts’s opinion in Sebelius.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

9 Responses

So, would the admission of a free state during the 1850s be unconstitutional because it would have given Republicans an advantage in the Senate? This is a facetious question, but how do you distinguish between partisan advantages and legitimate changes to the government?

Also, isn’t it equivocating a little bit to talk about Senate “precedents”?

I’m not sure yet Brian. You could say that partisan gerrymandering is not a one-way street. It lets one party get an unfair advantage in some states and another get an advantage in others. That is not great, but it is not clear that there is a systemic advantage (and tolerance for the practice would suggest that people do not think that this violates the anti-partisan principle). But I need to think about that more carefully.

The term “constitutional” has various connotations and the OP is correct to seek out certain understood “constitutional norms” or whatever that rise above some “powerful norm.”

Still, the rules for impeachment is how history thus far understands the limits of what is truly a “high crime or misdemeanor” for impeachment purposes. It is understood that mere partisan concerns is not enough there. I don’t know how much F.10 factors in here. One faction cannot get too much power by passing a law that violates the 1A either.

married folks from overtaxing singles?
breeders from taxing non-breeders for their children’s sake?
brown-eyed folks from taxing the blue-eyed?
tall people from taxing short people?
fat people from denying jobs to skinny people?

“One faction cannot get too much power by passing a law that violates the 1A either.”

In theory, no faction should be able to get ANYTHING by passing a law that violates the 1st amendment; Not “too much” power, not “a tiny increment” of power; The 1st amendment isn’t a norm, it’s the highest law of the land, it’s not supposed to be violated AT ALL, regardless of what’s sought by the violation.

Yes, I did not intend anything else — “cannot” here means “does not have the LEGITIMATE power to do so.” I didn’t mean to say it was merely a “norm.” You “can” break norms. It might be gauche or something, but it’s allowed.

That was my point — the impeachment example is based on the understanding that there is a constitutional limit, that it is not a “no contest” vote, it is a high crime or misdemeanor. The question might not be justiciable (at least under the Walter Nixon precedent) but still.